Extended essay J Med Ethics: first published as 10.1136/medethics-2020-107117 on 9 June 2021. Downloaded from Justice in COVID-19 vaccine prioritisation: rethinking the approach Rosamond Rhodes Correspondence to ABSTRACT the entirety of interpersonal ethics and defined justice Dr Rosamond Rhodes, Medical Policies for the allocation of COVID-19 vaccine were as giving each his due. He also recognised the difficulty Education, Mount Sinai School in determining which features of a situation should be of Medicine, New York, New implemented in early 2021 as soon as vaccine became York, USA; available. Those responsible for the planning and execution taken into account in deciding that individuals are simi- Rosamond. Rhodes@ mssm. edu of COVID-19 vaccination had to make choices about who larly situated and which factors should be given priority received vaccination first while numerous authors offered in a particular situation. Justice requires moral discern- The material for this paper was their own recommendations. This paper provides an account ment to identify the factors that are most significant in presented on the following of how such decisions should be made by focusing on the a particular kind of situation and judgment about how panels: ASBH, ’Justice at they should be compared. Stake: Distributing a COVID-19 specifics of the situation at hand. In that light, I offer an Vaccine’, 18 October 2020; argument for prioritising those who are likely vectors of the A long tradition of moral and political philos- ’What Did Bioethics Contribute disease and a criticism of the victim- focused priority proposals ophers, including Thomas Hobbes and Immanuel to the COVID-19 Pandemic put forward by the US Centers for Disease Control and Kant, and contemporary contractarian construc- Response? A Retrospective’, Prevention, the National Academies of Sciences, Engineering, tivist philosophers, most prominently John Rawls, Wiley Press Symposium, 17 March 2021; and ’Equity and Medicine, the UK National Health Service, and others. T.M. Scanlon and Onora O’Neill, follow Aristo- ii and Justice in the COVID-19 I also offer thoughts on how those authors may have gone tle’s insights. Each of them offers an account of Emergency’, Fondazione Bruno astray. justice that draws on an array of reasons, including Kessler, Trento, Italy, 18 May both factual matters that should be considered and 2021. principles. Similarly minded philosophers recognise Received 6 December 2020 COVID-19, also identified as SARS- CoV-2, is a new that when we have to decide which course to take, Accepted 22 May 2021 coronavirus that emerged first in China in late 2019. every choice may involve sacrificing some cherished Published Online First It quickly spread around the world, infecting and principles. 9 June 2021 killing humans in its wake. Doctors were called to Explaining what makes right acts right in his treat infected patients, but they knew almost nothing important book The Right and the Good, Sir William about the disease or treatments that might be effective. David Ross explicitly states what thoughtful people What they did know was that the disease appeared to know. He writes, ‘It is obvious that any of the acts be highly contagious and deadly. Public health officials that we do has countless effects, directly or indi- identified the need for masking and physical distancing rectly, on countless people, and the probability is that in order to ‘flatten the curve’ of the rising rate of infec- any act, however right it may be, will have adverse tion and avoid overburdening the healthcare system. At effects’ (p.41).1 iii And as Philippa Foot explained, http://jme.bmj.com/ the same time, scientists harnessed their knowledge of ‘For one for whom moral considerations are reasons immunity and worked rapidly to develop vaccines for to act there are better moral reasons for doing this preventing serious disease. action than for doing any other’ (p.385)1 2 and that Once vaccines were proven safe and effective, their remains the case even when ‘[t]he situation may availability introduced a new ethical issue, namely how be such that no one can emerge with clean hands should the initial limited supply be allocated. This is, primarily, a matter of distributive justice, determining on September 26, 2021 by guest. Protected copyright. who among the many who want it should receive vaccination before others. ii For example: Rawls J, A theory of justice (Cambridge, MA: Harvard University Press, 1971); Rawls J, Political liberalism (New York: Columbia University Press, 1993); Scanlon TM, WHAT MAKES A DECISION RIGHT AND JUST? What we owe to each other (Cambridge, MA: Belknap Press Martin Luther King maintained that ‘It is not possible of Harvard University Press, 1998); Onora O'Neill. Towards justice and virtue: A constructive account of practical to be in favor of justice for some people and not be in reasoning. (Cambridge University Press, 1996);Acting on favor of justice for all people’. This statement captures principle:an essay on Kantian ethics (New York: Columbia the essence of Aristotle’s formal principle of justice, University Press, 1975); Onora O'Neill. Constructivism vs contractualism. Ratio 2003; 16 (4):319–331. which requires equal treatment of everyone who is iii similarly situated. With prescient insight, Aristotle In the summary chapter at the end of his second book acknowledged the complexity and contextuality of on moral philosophy, Foundations of Ethics, (p. 318) Ross makes the same point. There he explains that, ‘in deciding justice. In his lengthy discussion of justice in Book 5 of what I ought to do, it is evident that I must consider equally © Author(s) (or their the Nicomachean Ethics,i Aristotle equated justice to employer(s)) 2021. No all the elements, so far as I can foresee them, in the state of commercial re- use. See rights affairs I shall be bringing about. If I see that my act is likely to help M, for instance, and to hurt N, I am not justified in and permissions. Published i by BMJ. Aristotle enumerated three types of justice: distributive, ignoring the bad effect, or even treating it as less important retributive and equity. The discussion of justice in this paper than the good effect, merely because it is the good effect and To cite: Rhodes R. concerns primarily distributive justice, that is, how the not the bad one that I wish to bring about. It is the whole J Med Ethics limited supply of vaccine should be distributed. Aristotle, nature of that which I set myself to bring about, not that part 2021;47:623–631. The Nicomachean Ethics of Aristotle, translated by WD of it which I happen to desire, that makes my act right or Ross. London: Oxford University Press, 1971. wrong.’ (italics in original). Rhodes R. J Med Ethics 2021;47:623–631. doi:10.1136/medethics-2020-107117 623 Extended essay J Med Ethics: first published as 10.1136/medethics-2020-107117 on 9 June 2021. Downloaded from whatever he does’.2iv Some prima facie obligation may be violated those situations, we have to acknowledge that upholding even when, all things considered, the chosen action is the right some principle(s) of justice may be inappropriate for making thing to do (p.388).4 v To paraphrase philosopher John Gray, the the particular kind of decision at hand. In such circum- actions or policy goals we determine to be right or wrong, just stances, abiding by principles that are incompatible with a or unjust, are conclusions, not the dictate of a foundational prin- critical goal subverts justice.8 vii ciple, but ‘the end- products of long and complicated chains of reasoning’ (p. 84).3 5And as Scanlon puts it, ‘[j]udgments about what is good or valuable generally express practical conclusions JUSTICE IN COVID-19 VACCINATION PRIORITISATION about what would, at least under the right conditions, be reasons As I understand the vaccination priority suggestions offered by for acting or responding in a certain way’ (p.96).3 vi (emphasis policy makers and authors in preparation for vaccine distribu- added) tions, both sorts of problems infected their thinking. On the In contrast to this constructivist approach to ethics, one hand, essentialists presumed that their singular conceptions numerous authors who write on justice and healthcare of justice (eg, ‘fair equality of opportunity’ or ‘priority for the appear to favour a more Platonic approach. Most typically, worse off’) were the meaning of justice and that no other prin- they articulate a singular principle as the meaning or essence ciples for vaccine distribution were legitimate. On the other of justice. Today, the most popular essentialist positions hand, those who maintained that justice required simultaneously on justice in medicine and public health hold that justice upholding several principles tried to do so without taking all of is equality (ie, egalitarianism),4 6 or that justice is utility the relevant factors into account or noticing the incompatibility (ie, utilitarianism; whatever produces maximum number of with critical aims. In what follows, I will explain how the recom- life years),4–6 or that justice is priority for the worst off (ie, mendations that resulted from these misunderstandings led to prioritarianism),6 7 or that justice is fair equality of oppor- unjust vaccine allocation proposals. tunity (ie, progressivism).7 8 Even though there are partic- Foreseeing the advent of vaccines in the months that ular situations in which a just allocation should accord with followed the emergence of the COVID-19 pandemic, one or another of those principles, I regard these positions numerous authors and institutions drafted prioritisation and other recently popular essentialist views (eg, justice is guidance. The policies and documents that were produced reciprocity; justice is correcting structural inequality) as represent sincere efforts by individuals and groups to map problematic because they fail to recognise that different out the difficult decisions that had to be made in the face of circumstances require prioritising different considerations the threat to human life and civil society.